Divorce is a complex and emotional process for anyone, but for those in the military and their spouses, there can be additional complications. Military life comes with its own unique challenges, with one spouse being deployed at certain times and repeatedly moving into new states, both of which make navigating the legal and logistical aspects slightly more involved.
If you are in the military, or are considering obtaining a divorce from someone in the military, there are key considerations that will help you understand what you need to know.
What is the Difference Between Civilian and Military Divorces?
The difference between civilian and military divorces is largely procedural. There are a few legal considerations specific to military divorces that don’t apply the same way to citizen divorces. For example, most civilian divorces are governed by the laws of the specific state where the divorce was filed. Military divorces are governed by the particular state’s and federal laws where at least one spouse is a service member.
Jurisdiction and Residency
One of the first steps in any divorce process is determining the appropriate jurisdiction for filing. For military personnel, this can be a bit more complicated. Active duty service members are often stationed in different states or even countries, which raises questions about where to file for divorce.
In many cases, the service member’s legal residence will dictate where the divorce should be filed. However, military families may also choose to file wherever they are stationed or where the person filing lives at the time. It is wise to look into laws for the various states to see which benefit your individual situation.
For those military personnel in active duty, the Servicemembers Civil Relief Act (SCRA) provides protection from judgment by default. The reasoning behind this act is that the military personnel need to have their energy and focus on their duty. As a result, service members may request a “stay” that will temporarily put the case on hold.
The 20/20/20 Rule and Benefits
The 20/20/20 rule refers to the requirement for a minimum of 20 years of marriage, 20 years of military service by the service member, and 20 years of overlap between the marriage and military service. If these criteria are met, the non-military spouse is entitled to certain benefits such as Tricare (military healthcare), commissary and exchange privileges, and access to military retirement pay.
Division of Military Pension
Like a civilian divorce, a military pension will be divided through divorce proceedings. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to divide military retirement pay as marital property. The 10/10 rule stipulates that the marriage must have lasted 10 years, during which the service member completed at least 10 years of military service. The Defense Finance Accounting Service will then directly distribute the payments to the former spouse.
These payments are up to 50 percent of the service member’s pension, unless this includes alimony and child support, which could bring the percentage up to 65 percent.
If parties do not meet the 10/10 requirement, a former spouse still has the opportunity to receive a division of the pension, but this will not be through the accounting service.
Child Custody and Support
Due to potential deployments, frequent relocations, and extended absences, child custody and support arrangements can be especially complex in military divorces. Courts prioritize the best interests of the child when determining custody arrangements. The military parent’s ability to provide a stable environment despite the challenges of their service obligations will be taken into consideration.
Child support calculations may also differ due to military allowances and other factors unique to military life.
Deployments can significantly impact custody arrangements. Communication and cooperation between the divorced parents become even more critical during these periods. Developing a comprehensive parenting plan that outlines how custody will be managed during deployments, including communication methods and visitation schedules, can help mitigate potential conflicts.
Navigating a military divorce requires a deep understanding of both family law and military regulations. Seeking legal assistance from family law attorneys experienced in military divorces can greatly ease the process. For compassionate counsel and guidance, or information about services and resources available to help service members cope with the emotional and logistical challenges of divorce, reach out here.
Resources:
https://veteran.com/what-is-the-20-20-20-rule-for-military-spouses/
https://www.military.com/spouse/relationships/military-divorce-where-you-file-matters.html
https://www.findlaw.com/family/divorce/military-divorce.html
